LAW PROFESSORS' LETTER ON HR 1710
December 6, 1995
Rep. Newt Gingrich
Speaker of the House
U.S. Capitol
Washington, DC 20515
RE: HR 1710, the "Comprehensive Antiterrorism Act of 1995"
Dear Speaker Gingrich:
We the undersigned are law professors at a number of leading
American law schools. We are writing to urge the withdrawal or defeat of
HR 1710, the Comprehensive Antiterrorism Act of 1995. Although we hold
different views on a number of political and legal issues, we are united
in our belief mat this Act poses an unwarranted threat to the civil
liberties of law-abiding Americans.
Although this Act is offered as a response to the Oklahoma City
bombing, there is no reason to believe that its provisions would have
prevented that tragedy had they been in force at the time. Indeed, many of
its provisions—such as those aimed at immigration - - have nothing
whatsoever to do with the American citizens accused of having committed
that crime. Instead, the Act contains a number of drastic expansions to
law enforcement power that have been requested, and denied, in the past.
The tragedy of the Oklahoma City bombing is no reason to grant such
ill-advised powers today.
Although the problems posed by the Act are too numerous to mention
in this short letter, here are a few of the most significant:
An Overbroad Definition of "Terrorism": The Act defines terrorism so
broadly as to encompass things like the hijacking of a bicycle or the
vandalism of street signs using a .22 caliber rifle. In the process it
federalizes many minor crimes that are already adequately dealt with under
state law, and opens the door for selective prosecution of individuals as
"terrorists" based on their political views or on the political needs of
federal officials at the time.
Assault on Freedoms of Speech and Association: The Act grants authority to
the Secretary of State to designate any foreign group a "terrorist"
organization. Once that is done, members of that group (even if guilty of
no "terrorist" acts themselves) would be barred from entering the United
States, and American citizens would be barred from providing "support" for
any activities of that group, even if those activities were entirely
legal, non-violent, and laudable. The Act also repeals existing
Law Professors' Letter/HR1710
December 6, 1995
Page 2
statutory prohibitions on federal investigations of groups based solely on
their First Amendment activities. This repeal invites a reprise of the bad
old days of FBI COINTELPRO investigations (and harassment) of antiwar
groups, and of similar investigations into U.S. groups active in Central
American issues during the 1980s.
Expanded Use of Wiretaps: Americans are already concerned about the
erosion of privacy stemming from new technologies, but this bill would
vastly expand those concerns by vastly expanding the ability of federal
authorities to conduct wiretaps and other forms of electronic
surveillance. Where there is a genuine threat of terrorism, existing laws
already permit necessary surveillance. The expansion of authority granted
here would permit much unnecessary surveillance, at the expense of
citizens' privacy. It would also encourage "fishing expeditions" against
politically unpopular groups or individuals.
Secret Evidence in Deportation Hearings: The Act permits the deportation
of legal aliens based on secret evidence that would not be shared with the
alien. Resident aliens would be appointed a "special attorney" possessing
a security clearance who could review the evidence and challenge it in
camera but who would be barred from disclosing the evidence to the alien,
or the alien's immigration attorney. Federal courts have consistently
ruled that reliance on secret evidence violates due process rights. These
procedures pose serious constitutional problems, and dangerously impair
the lawyer/client relationship. They are also unnecessary, as the federal
government already possesses more than adequate power under the
immigration and criminal laws to deal with aliens suspected of serious
crimes. It is also difficult to see what this provision, and the many
other immigration-related provisions in the Act, have to do with the
Oklahoma City bombing (which is frequently presented as the reason for
this legislation), given that those currently awaiting trial for that
crime are American citizens.
An Expanded Military Role in Law Enforcement: Americans have traditionally
been suspicious of military involvement in law enforcement. The use of
military forces in a police role tends to be associated with police
states, not with free countries. Soldiers are not trained to respect
constitutional rights, or to use the minimum force necessary. For this
reason the Posse Committals Act, 18 U.S.C §1385 forbids the use of the
military in a law-enforcement role. More recent legislation creates a
narrow exception in the case of nuclear weapons or materials, where
civilian authorities are not capable of enforcing the law. 18 U.S.C
§831(e). Though purportedly aimed at expanding that authority to deal with
chemical and biological weapons, this Act goes substantially beyond
previous limits, dramatically expanding the ability of the Attorney
General to call on the federal military for law enforcement purposes.
There is no need for such authority, and this expansion can only serve to
inflame the concerns of those citizens—on both me left and the right of
the political spectrum -
Law Professors' Letter/HR1710
December 6, 1995
Page 3
- who already fear the militarization of law enforcement that has occurred
over the past two decades.
The many other defects in this legislation have already been pointed out
by groups across the political spectrum. Americans have valued their
rights over many years. This legislation makes dangerous and unnecessary
inroads into many rights valued by Americans, and would only serve to
inflame - or perhaps justify—the fears of those Americans who worry that
the federal government threatens constitutional rights that they hold
dear. We urge you to recognize that the best defense against terrorism is
a free and open society, and to put a stop to this dangerous and unneeded
legislation.
List of Signatories
(Affiliations indicated for identification only)
(List as of Tuesday, 12/5; still under formation)
Prof. Randy Barnett
Boston University School of Law
Prof. Charles Baron
Boston College Law School
Prof. Edwin Butterfoss
Hamline University Law School
Prof. Neil Cohen
University of Tennessee Law College
Prof. David Cole
Georgetown University Law School
Prof. Norman Dorsen
New York University School of Law
Prof. Steven Duke
Yale Law School
Prof. Thomas Grey
Stanford Law School
Law Professors' Letter/HR1710
December 6, 1995
Page 4
Prof. Nicholas Johnson
Fordham University Law School
Prof. Kenneth Karst
UCLA School of Law
Prof Charles Lawrence
Georgetown University Law School
Prof. David Mayer
Capital University Law School
Prof. Joseph Olson
Hamline University School of Law
Prof. Jeffrey S. Parker
George Mason University School of Law
Prof. Glenn Reynolds
University of Tennessee Law College
Prof. Louis M. Seidman
Georgetown University Law Center
Prof. Steven Shiffrin
Cornell University
Prof. William Van Alstyne
Duke University
Copies to:
Rep. Richard Armey
House Majority Leader
Rep. Richard Gephardt
House Minority Leader
Rep. David Bonior
House Minority Whip